Change to burden of proof in discrimination claims
The EAT has ruled that there is no initial burden of proof on a claimant who brings a discrimination claim.
There is no initial burden of proof on a claimant who brings a discrimination claim. Instead employment tribunals must consider all the evidence, from all sources, at the end of the hearing, and determine whether there are facts from which they can infer that discrimination occurred. An employer who fails to adduce relevant evidence of facts within its own, but not the claimant’s, knowledge runs the risk that an employment tribunal will draw adverse inferences from its failure to do so.
In Efobi v Royal Mail Group Limited, Mr Efobi worked as a postman for Royal Mail Group (RMG). He is a black African who was born in Nigeria and has various graduate and postgraduate degrees in Information Systems. He applied for over 20 IT jobs with RMG and was unsuccessful. He claimed that this was due to race discrimination. The employment tribunal rejected his claims, ruling that he had not proved facts from which it could conclude that there was discrimination. He had adduced no evidence of the race or national origins of the successful candidates, whereas RMG had adduced plenty of evidence of non-discriminatory reasons for rejecting his applications. RMG’s case was that whilst Mr Efobi was highly qualified technically, his CV did not demonstrate the skills required for the various jobs.
Mr Efobi appealed to the Employment Appeal Tribunal (EAT).
The EAT ruled that the employment tribunal should not have required Mr Efobi to prove facts from which it could infer discrimination. There is no initial burden on a claimant to prove anything. Instead the employment tribunal should have considered all the evidence, from all sources, at the end of the hearing, and determine whether or not there were facts from which it could infer discrimination occurred. If there are such facts, the tribunal must find that discrimination occurred unless the respondent shows a non-discriminatory reason for the treatment.
The EAT warned that if a respondent chooses, without explanation, not to adduce evidence about matters that are within its own knowledge, (such as, in this case, the race and national origins of the successful candidates) it runs the risk that a tribunal will draw adverse inferences from its failure to do so. The EAT also considered that had the employment tribunal not made the mistake it did, it might have subjected RMG’s explanation for its treatment of Mr Efobi to more rigorous scrutiny than it did.
It remitted the case to a different employment tribunal to consider whether RMG had discriminated against Mr Efobi.
Until now, case law has indicated that the claimant bears the initial burden of establishing a prima facie case of discrimination. However, that case law considered the predecessor legislation to the Equality Act which contained different wording. Going forwards, an employment tribunal will have to look at all the evidence, not just the claimant’s, and decide whether there are facts from which it can conclude that discrimination has occurred. Employers defending claims will therefore have to ensure they call relevant evidence on the key issues, as a failure to do so could lead to a tribunal drawing inferences of discrimination. In this case, RMG did not adduce evidence of the race and national origins of the successful candidates and did not call any of the people who had rejected Me Efobi’s job applications to give evidence, despite the fact that a number still worked for RMG. The EAT considered that an employment tribunal could have drawn inferences of discrimination from such failings.
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